Customs, Excise and Gold Tribunal - Delhi
Harsha Tractors Ltd. vs Collector Of Customs on 27 February, 1991
Equivalent citations: 1991ECR1(TRI.-DELHI), 1991(56)ELT609(TRI-DEL)
ORDER
G. Sankaran, President
1. Custom Appeal No. 224/82-C filed by M/s. Harsha Tractors Ltd. was disposed of by this Tribunal by Order No. 43/89-C, dated 27-1-1989. The operative part of the order was to the effect that that part of the order of the Appellate Collector extending the benefit of Notification 35/79-Cus. would stand and would not be affected by the order of remand passed in respect of the other issues. The other issues were that the lower authorities had not considered the appellants' claim to the benefit of Notification 342/76-Cus. in respect of basic duty of customs and Notification 161/76-C.E. in respect of additional duty of customs. The matter was remanded to the Asstt. Collector with a direction to give due opportunity to the appellants for production of evidence or documents in support of their claims and to dispose of the claims.
2. According to the present application, M/s. Harsha Tractors Ltd. (hereinafter called the applicant) applied to the Assistant Collector for refund of Rs. 72,881.21. On 6-12-1990, the Assistant Collector wrote to the Consultant for the applicant that a refund order was ready for issue. The applicant was requested to furnish evidence to the effect that the benefit of refund had already been passed on to the Consumers/Buyers (of the goods) for issue of the refund order. It is the applicant's contention that this letter is contrary to law and the Assistant Collector has no authority to demand such information. The applicant has, therefore, approached this Tribunal with a request to exercise its powers under Rule 41 of the CEGAT (Procedure) Rules, 1982 and direct the respondent-Collector of Customs, Calcutta, to grant the refund amount.
3. We have heard Shri M.A. Rangaswamy, Advocate, for the applicant and Shri L. Narasimha Murthy, DR, for the respondent-Collector.
4. Rule 41 of the CEGAT (Procedure) Rules reads as follows: -
"41. Orders and directions in certain cases. - The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice."
5. It was put to the Learned Counsel for the applicant whether the Tribunal would have jurisdiction to enforce the Assistant Collector's order sanctioning the refund, the reply was that the Assistant Collector's order arose as a sequel to the Tribunal's order of remand and, therefore, the order sanctioning the refund must be deemed to be as a sequel to the Tribunal's order disposing of the appeal.
6. We are unable to accept the Counsel's submission. The Tribunal, no doubt, had directed the Assistant Collector to determine the claim of the appellants with reference to two notifications in de novo proceedings but the direction did not amount to a directive to the Assistant Collector to allow the appellants' claim and sanction the refund. It left the matter to the determination of the Asstt. Collector. It is in pursuance of these remand proceedings that the Asstt. Collector has apparently sanctioned the refund. The payment of the refund is in consequence of the Asstt. Collector's order. While undoubtedly the Tribunal has the power, in terms of Rule 41, to enforce compliance with its own orders including orders directing refund, it does not have (and no authority has been placed before us to the contrary) any power or jurisdiction to enforce compliance with the order passed by a lower authority. We can better appreciate this point by taking a hypothetical case. Suppose in the very same remand proceeding, the Assistant Collector had, on conclusion of the de novo proceedings, dismissed the appellant's claim. Surely it cannot be contended that the remedy against the Assistant Collector's order lies in an appeal to the Tribunal. Contrariwise, if the applicant has any grievance with the Department's attitude in not paying refund even after the Asstt. Collector has sanctioned the claims, the remedy does not lie in approaching this Tribunal with a prayer to enforce the Asstt. Collector's order. It is a misconception to say that enforcing the Assistant Collector's order in the present case is really enforcing the Tribunal's order. If the Asstt. Collector had flouted the direction of the Tribunal, say, to pay a refund directed by the Tribunal, to be paid in a stated period, that would be a situation where the powers of the Tribunal under Rule 41 could be invoked for appropriate direction to enforce compliance with the Tribunal's direction. In the present instance, in our view, the Tribunal does not have the authority to pass any order which has the effect of enforcing the Assistant Collector's order.
7. Shri Rangaswamy cited before us the Tribunal's decision in Mahaveer Metal Industries v. Collector of Central Excise, Madras 1987 (31) ELT 739. He fairly stated that the context in which that order was passed was different. The appellants in that case before the Tribunal had come in an appeal proper against the order of the Collector of Central Excise (Appeals), Madras. In that case, as against an order passed by original authority, a revision had been filed before the revisionary authority, namely, the Government of India, who remanded the issue for de novo consideration and pursuant to the order of remand, the Deputy Collector passed an order dropping all proceedings against the assessee. It was in this context that the Tribunal observed that it could not be contended that as against the order of Deputy Collector the assessee should have filed an application for refund before the Assistant Collector of Central Excise within the limitation laid down in Section 11-B of the Central Excises & Salt Act. This conclusion was reached in view of the provisions of Sub-section (3) of Section 11-B providing that where as a result of any order passed in appeal or revision under this Act refund of any duty of excise becomes due to any person, the Assistant Collector of Central Excise may refund the amount to such person without his having to make any claim in that behalf. The context being entirely different, this decision has no relevance to the instant case. It goes without saying that had the Tribunal allowed the appeal filed by the present appellant and granted the relief directing the lower authorities to pay consequential refund, then, the appellant was not required to file an application for getting refund.
8. In the light of the foregoing discussion, we dismiss the present application.